[2017] KEHC 9481 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 1106 OF 2010

IN THE MATTER OF THE ESTATE OF CYRUS MBEERE GITHINJI (DECEASED)

ALBERT NJERU GITHAE……………..APPLICANT

VERSUS

SYMON WAIRAGU GITHAE ……....RESPONDENT

JUDGMENT

1. The deceased Cyrus Mbeere Githinji died intestate on 28th April 2009. He was survived by the following children:-

a. Marjory Wanjiru Wabandi (deceased);

b. Alice Ngima Githae;

c. Mary Wanjira Mathai;

d. Albert Njeru Githae (the applicant);

e. Wilson Kimotho Githae;

f. Symon Wairagu Githae (the respondent);

g. John Githira Githae; and

h. Maureen Wanjiku Githae.

The properties comprising the estate were:-

a. LR No. Tetu/Kiriti/63;

b. LR No. Nanyuki/Marura/Block 2250 (Endana);

c. 23,854 KTDA Shares at Gathuthi Tea Factory Co. Ltd;

d. 402 KTDA Shares in Chinga Tea Factory Ltd;

e. 1062 KTDA Rehmtulla Shares at Farmers Co. Ltd;

f. 375 shares at Wananchi Sacco Society; and

g. Bank Cash Credit at Wananchi Sacco Society Ltd A/C No. [particulars withheld].

There are two contested properties:-

a. Tharua Ngobit Farm; and

b. Mombasa House Shares.

The applicant stated that they existed but the respondent’s case was that they were non-existent. The applicant did not produce any evidence to prove their existence. If, at any future date, they will be shown to exist, an appropriate application shall be made for their distribution.

2. On 7th July 2010 the applicant petitioned for the grant of letters of administration. The respondent filed an objection to the petition. The court directed that the two be granted joint letters of administration, and that the objection by the respondent be withdrawn. The orders were effected and joint letters issued on 12th April 2011.

3. On 29th August 2011 the applicant filed an application to have the joint grant confirmed. In the supporting affidavit, he proposed as follows:-

a. Marjory Wanjiru Wabandi gets 5000 shares from Gathuthi Tea Factory and 0. 1 Ha of LR No. Tetu/Kiriti/63;

b. Alice Ngima Githae gets 0. 259Ha of LR. No. Nanyuki/ Marura/Block 2250/(Endana);

c. Mary Wanjira Mathai gets 0. 259 Ha of LR. No. Nanyuki/ Marura/Block 2250 (Endana);

d. He (the applicant) gets 1062 KTDA shares at Rehmtulla House, 1246 shares from Gathuthi Tea Factory, 500 shares from Wananchi Sacco Ltd, Housing shares worth 2,500 from Wananchi Sacco, 0. 840 Ha in Tetu Kirita/63 and 0. 2025 Ha in Tharua Ngobit Farm;

e. Wilson Kimotho Githae gets 5528 shares from Gathuthi Tea Factory, 0. 58 Ha from LR No. Tetu Kiriti/63 and 0. 2025Ha from Tharua Ngobit Farm;

f. The respondent gets 4135 shares from Gathuthi Tea Factory, 402 shares from Chinga Tea Factory, 0. 56Ha in LR No. Tetu/ Kiriti/63 and 0. 2025Ha in Tharua Ngobi Farm;

g. John Githira Githae gets 7945 shares from Gathuthi Tea Factory, 0. 61Ha in LR No. Tetu/Kiriti/63 and 0. 2025Ha in Tharua Ngobit Farm;

h. Maureen Wanjiku Githae 0. 259Ha in LR No. Tetu/Kiriti/63; and

i. 0. 025 in LR No. Tetu.Kiriti/63 be utilized as common site (burial ground) for the family.

Marjory Wanjiru Wabandi and John Githira Githae supported this mode of distribution.

4. The respondent opposed the application in the affidavit filed on 6th October 2011. He filed his mode of distribution on 23rd November 2011. In it he proposed that LR No. Tetu/Kiriti be shared so that he gets 3. 166 acres, Alice Ngima Githae gets 2. 166 acres and Wilson Kimotho Githae gets 2. 166 acres; Nanyuki/Marura/Block 2250 Engana goes to John Githira Githae; the applicant gets Thatua Ngobit Farm; Wilson Kimotho Githae gets all shares in Wananchi Sacco; he (the respondent) gets all shares in Gathuthi Tea Factory; John Githira Githae gets all shares at Chinga Tea Factory; Alice Ngima Githae gets all shares in Rehmtulla House and Applicant gets all the shares in Mombasa House. I have found in the foregoing that Tharua Ngobit Farm and shares in Mombasa House do not exist, this means that there is no property in the estate that the respondent proposed for the applicant. Nonetheless, Marjory Wanjiru Wabandi, Alice Ngima Githae, Mary Wanjira Mathai and Wilson Kimotho Githae supported his proposal.

5. The court asked the parties to give oral evidence. Both the applicant and the respondent gave evidence. Alice Ngima Githae and a relative Peter Gitahi Githinji gave evidence to support the respondent. Ms. Guserwa represented the respondent while Mr. Kimani represented the applicant. Each counsel filed written submissions after the oral hearing. I have considered the affidavits and the oral evidence, and the written submissions.

6. When the petition was filed it was on the basis that the deceased had died intestate. In the affidavit of protest sworn on 5th October 2011 by the respondent and the affidavits sworn on 11th August 2011 by the applicant there was no reference to any Will, oral or written, left by the deceased. It was during the witness statements and oral evidence that reference was made to the deceased having indicated how he wanted his estate to be shared. The applicant’s evidence was that on 4th October 1978 the deceased called his family to a meeting in which he stated that in the event of his death, land parcel No. Tetu/Kiriti/63 (which was the only land he had then) be shared equally among his sons, and that his shares in Gathuthi Tea Factory (which were the only shares he had then) be shared equally among all his children. He produced minutes of the meeting that were signed by the deceased, his wife Eva Wangui Githae, Marjory Wangui Githae and himself. According to the respondent, before the deceased died he called his family to his (the respondent’s) house at Karen and orally indicated how he wanted his property to be shared upon his death. The applicant did not turn up. This was on 9th February 2008. The deceased indicated that Tetu/Kiriti/63 land would be shared so that the respondent gets 3½ acres, Wilson Kimotho Githae gets 2 acres and Alice Ngima Githae gets 2 acres. It does not appear to be in dispute that the applicant had taken a loan of Kshs.100,000/= from Continental Bank and had used Tetu/Kiriti/63 as security. He was not able to service the loan. The land was to be auctioned. The respondent, Mary Wanjira Mathai, Wilson Kimotho Githae and Alice Ngima Githae raised Kshs.216,000/= to save the land. The deceased sued the applicant to recover the land. There was judgment in the amount plus costs and interest. The applicant paid the deceased Kshs.300,000/= in 2000 to settle the debt. Further in 1991 the applicant was charged with attempting to murder the deceased but was acquitted for lack of evidence. These were the circumstances that led the deceased not to provide for the applicant in respect of Tetu/Kiriti/63, according to the respondent. There is no dispute that the deceased and the applicant were not on good terms by the time the former died. I find that the oral Will would not be valid under section 9 of to the Law of Succession Act (Cap 160)as the deceased died more than three months from the date of making it.

7. The respondent disputed the evidence by the applicant that there was any family meeting at which the deceased expressed his wishes on how his estate would be shared. I have considered all the evidence, and find that the deceased died intestate. The evidence as to the alleged wishes is so conflicted and self–serving as not to be believed.

8. Under section 38 of the Act the estate should be divided equally among the children’s deceased. The share of Marjory Wanjiru Wabandi shall go to her children. In respect of Tetu/Kiriti/63 0. 025Ha shall be preserved as a common site. The remainder shall be shared equally among the children of the deceased. The same goes for Nanyuki/Marura/Block 2250, and the shares in Gathuthi Tea Factory, shares at Chinga Tea Factory, shares at Rehmtulla KTDA, shares at Wananchi Sacco Society and the money in Wananchi Sacco Society Ltd A/C No. [particulars withheld].

DATED and DELIVERED at NAIROBI this 5TH day of OCTOBER 2017

A.O. MUCHELULE

JUDGE